01 Feb 2022

Game, set and vax: does no jab mean no match for unvaccinated athletes?

Multilaw Sport Group lawyers answer key questions on this topical debate and the possible wider implications for the world of elite sports

TOKYO, JAPAN --JULY 28: Novak Djokovic of Serbia reacts against Alejandro Davidovich Fokina of Spain during the Men's Singles Third Round Tennis Match on day five of the Tokyo 2020 Olympic Games

Novak Djokovic competing at the Tokyo Olympics Asatur Yesayants; Shutterstock

As the pandemic lingers on and lives remain severely disrupted, countries are adapting differently to the ‘new normal’. And so, two years later, serious debate still surrounds travel allowances extended to elite athletes to compete in international tournaments despite widespread travel bans and lack of coronavirus vaccinations. 

For example, the Australian government continues to restrict entry to the country, banning tourists and requiring persons that do visit to hold one of a designated list of visas with the requirement of full vaccination or proof of a valid medical exemption. These exemptions are assessed at the Australian border and if deemed invalid, then the visa will be cancelled, and the person deported.

Famous athletes are no exception here, as recently seen with number one ranked tennis star, Novak Djokovic. However, Australia isn’t the only country with strict rules concerning unvaccinated players.

Kyrie Irving was originally refused the right to play for the first two months of the National Basketball Association season because he refused to be vaccinated. While he is now able to play, he is still not able to play any home matches for his team, the Brooklyn Nets, because of New York’s rules on vaccination requirements.
 
American footballer, Aaron Rodgers of the Green Bay Packers, has refused vaccination, claiming to be allergic to some of the ingredients in the vaccine itself, without specifying which ingredients were the problem. Rodgers lost sponsorship from an American health care company for his refusal.

Swiss snowboarder, Patrizia Kummer, is unvaccinated and despite receiving several negative PCR tests was barred from the last two World Cup events at Carezza and Cortina d’Ampezzo in Italy at the end of December. She is currently having to complete a 21-day quarantine as she prepares to compete at the 2022 Beijing Winter Olympics unvaccinated and said getting to China involved missing qualifying races and worrying about a spot on the Swiss team.

France has toughened its Covid rules and there is no longer an exemption for unvaccinated professional athletes to enter the country. Following Djokovic’s Australian visa row, France’s new law will prevent him from competing at the French Open in May unless something changes before then. English Premier League side Chelsea Football Club may also be forced to leave any unvaccinated players behind for the second leg of their Champions League against Lille in March. 

German soccer player Joshua Kimmich remains unvaccinated due to his concerns over the lack of long-term studies. Kimmich could not participate in the match between FC Bayern Munich and Augsburg in November 2021 as he had to self-isolate after coming into contact with someone who tested positive for Covid-19.

FC Bayern Munich have recently imposed salary cuts to five of their unvaccinated players – including Kimmich. Each player is having to quarantine after coming into contact with someone who has the virus. For each day the players have to self-isolate, their wages will be cut for missing training or games due to being unvaccinated.

The following Q&A by the Multilaw Sport Group provides a cross-jurisdictional view on the impact of Covid-19 vaccinations in elite sports from an employment law perspective, touching on several key topics, namely what the law says, considerations for sports employers and governing bodies, as well as how the future of sporting events could be impacted.
 

Kian Bone, principal, Macpherson Kelley, Australia 
 
What is the law on vaccinations?
 
Unvaccinated Australian citizens and permanent residents may be required to quarantine for 14 days if they enter Australia from overseas. Australia’s borders are generally open to fully vaccinated permitted travellers (with the stark exception of Western Australia (WA)). Some states and territories require unvaccinated travellers to quarantine upon arrival. Each Australian state has varying rules with respect to the activities covered by vaccine mandates. For instance, a non-vaccinated person may not enter a hospitality setting in Victoria, but they are permitted to do so in New South Wales. Further, many industries where an employee cannot work from home require that employee to be fully vaccinated.
 
Are there any sporting exemptions to an international or domestic athlete attending a tournament, match, or event?
 
In one word, no. Some sporting events (for instance, the Australian Tennis Open) attempted to obtain exemptions to vaccines through a double-blind application to Tennis Australia and the Victorian State Government. Despite a small number of exemptions being granted, the Australian Government (which has ultimate responsibility for Australia’s borders) cancelled the visas of those who were granted these exemptions.
 
The current Australian Government policy is that if you are 1) a sportsperson with a public profile and 2) have an anti-vaccination stance (perceived or otherwise); you must be vaccinated to enter Australia to compete in your sporting event. This is on the basis that the unvaccinated sportsperson may be a threat to public health in Australia by encouraging anti-vaccination sentiment. This was the ultimate basis for Djokovic’s visa cancellation and deportation. Earlier, Australian border force (immigration) refused entry on arrival, because of questions over the exemption claimed.
 
Recently, the Australian Government has made clear that Kelly Slater would not be permitted entry to Australia to compete at the Bells Beah World Surfing Tour event unless he could provide evidence that he was fully vaccinated. The Australian Grand Prix also announced that they would only permit fully vaccinated drivers and support staff, with no provision for vaccine exemptions, to participate in the Grand Prix.
 
Further, most major Australian domestic sports leagues have a full vaccination policy. Although, these leagues do permit exemptions to vaccination that have been properly obtained.
 
What protections are in place for an athlete who is unvaccinated (i.e. discrimination, exemptions, health & safety)?
 
None, where policies are in place that require vaccination (or permitted medical exemption). Players have no different treatment to any employee where a workplace has adopted a vaccination requirement, or had one imposed on it by State health order. Medical exemptions do exist but are narrow. A person who has a valid exemption is deemed to be vaccinated, for the purposes of any health order.
 
How do you see future sporting events being impacted?
 
Beyond the visa impacts, some sporting events have already been impacted by State based border restrictions. This will continue while States maintain closed borders or restricted entry policies. For example, WA’s border largely remains closed to inter-state travellers (irrespective of vaccination) and so the Ashes Cricket Test was moved from Perth to Hobart. Other national tournaments (e.g. Big Bash T20 competition) which would normally be played all over Australia, exclude games in WA and its teams must relocate to other cities for the duration of the tournament.
 
It is difficult to see the current policies on full vaccination being relaxed for the foreseeable future. The precedent has been set with Djokovic (with overwhelming majority public agreement). So, while vaccination requirements are generally in place for entering Australia, these are extremely unlikely to be waived for a sporting player or event, no matter how high profile or lucrative.
 
Whether this means international events will be cancelled or rescheduled (e.g. Formula 1 Melbourne GP) or have reputational damage (e.g. Australian Tennis Open), we will need to see. Politically, as no event has complete adoption by Australians, there will always be more people in support of a hard-line vaccination stance than those impacted or aggrieved by consequential impact on an event.
 
Andrew Haywood, partner, Penningtons Manches Cooper, UK & Europe
 
What is the law on vaccinations?
 
Each country has different rules on vaccinations. In the UK, currently only those working in Care Quality Commission (CQC) registered care homes, and soon those working in the wider health and social care sector, such as NHS workers, will be required to be vaccinated to undertake their role. Effective ‘vaccine passports’ have been in place for some venues for sporting matches or large gatherings in the UK. In other countries, the rules are stricter and have, at times, involved unvaccinated people being refused entry to restaurants, bars, leisure facilities and some shops (Germany), or even put under lockdown altogether (Austria).
 
Are there any sporting exemptions to an international or domestic athlete attending a tournament, match, or event?
 
Certain exceptions enable elite athletes to travel for the purpose of competing in international tournaments. This is partly in recognition that public health risks associated with these events will be very low because of the meticulous planning and mitigation strategies operated so far as possible within a distinct bubble of those involved in the competition, and within distinct event venues and other relevant locations (such as athlete accommodation facilities). For example, elite athletes and their support staff may travel to the Netherlands from a country to which an entry ban applies if they meet certain conditions such as presenting a letter of invitation from the Netherlands Olympic Committee or the Royal Netherlands Football Association.
 
What protections are in place for an athlete who is unvaccinated (i.e. discrimination, exemptions, health & safety)?
 
Employers cannot force their staff to take a vaccination against their will, and currently only specific industries in the UK, mainly in the care sector, can adopt a ‘no jab, no job’ policy.
 
Depending on the sport, if refusing the vaccination on medical grounds or from previous adverse effects of the vaccination based on a condition, then the athlete would need to show that their condition amounted to a disability to get protection in the UK under disability discrimination law. Alternatively, an athlete could try and rely on the protected characteristic of religion or belief.
 
Employers must provide a safe working environment, and employees are afforded protection from detriment or dismissal under UK law if they remove themselves from an unsafe working environment because they perceive a serious and imminent threat to their health and safety, or that of others.  It is often difficult to manage the concerns of staff who are worried that their colleagues are unvaccinated against the concerns of staff who refuse the vaccination for justifiable reasons. Careful risk assessments are vital, or employers risk claims for automatically unfair dismissal, constructive unfair dismissal, and whistleblowing, as well as potential discrimination claims.
 
Additionally, employers must be very careful not to disclose special category sensitive personal data, including someone’s personal decision whether or not to be vaccinated, or they could face a claim for a breach of data protection legislation.
 
How do you see future sporting events being impacted?
 
It is likely that future sporting events will continue to be disrupted by Covid-19. France has announced that all athletes will need to be double jabbed to enter the country, which could restrict England’s ability to call on players who have refused the vaccination for the upcoming Six Nations. The spread of the Omicron variant has caused, and continues to cause, serious disruption to sport and many matches have already been postponed in the UK and other European countries. This has led to authorities taking a tough stance on decisions such as the refusal of a vaccination and we are likely to see a continuation of this trend as the pandemic persists.
 
André Nowakowski, partner, Miller Thomson LLP, Canada & North America 
 
What is the law on vaccinations?
 
In North America, each country has different rules regarding Covid-19 vaccinations. In addition, individual provinces and states have their own rules that apply within their own jurisdictions. Using Canada as an example, federal public service employees are required by the Federal Government to be vaccinated. In the province of Ontario, only employees of long-term care homes are required by the Ontario Government to be vaccinated. Many private and public sector employers throughout North America have implemented their own mandatory vaccination policies and some of these are the subject of legal disputes.
 
Governments have implemented “vaccine passport” rules that restrict entry into various “non-essential” businesses (e.g. restaurants) to only those who are fully vaccinated. In many areas, proof of full vaccination is required for fans to enter sporting venues.
 
There are also myriad vaccination and/or testing rules for international travellers. For example, only fully vaccinated international travellers are permitted to enter Canada and anyone boarding an airplane in Canada must be fully vaccinated.  In the United States (U.S.), international travellers are only required to meet Covid-19 testing requirements before entry into the U.S. and do not need to be fully vaccinated.
 
Are there any sporting exemptions to an international or domestic athlete attending a tournament, match, or event?
 
The rules again vary at the federal and state/province levels in North America. At a minor sports level, some sports organisations have implemented mandatory vaccinations for players 12 and older in order for them to participate.
 
Domestic players are required to follow the local Covid-19 rules. In addition, professional sports leagues have their own Covid-19 protocols, but many do not require vaccination for players. There may be different, stricter protocols for unvaccinated players (e.g. in the National Basketball Association (NBA)). Some, like the NBA, have requirements for staff to be vaccinated if they interact with players.
 
Rules regarding international athletes vary. As noted above, Canada requires international travellers to be fully vaccinated. However, Canada has an “International Single Sport Exemption” which permits entry to international high-performance amateur athletes who are unvaccinated. This was utilised for the International Ice Hockey Federation’s 2022 World Junior Championship (U20 Men’s) in Alberta, Canada. There were testing and quarantine rules to allow international players to attend and the tournament operated in a “bubble” format (ultimately it was cancelled in progress due to Covid-19 infections).
 
What protections are in place for an athlete who is unvaccinated (i.e. discrimination, exemptions, health & safety)?
 
For players in professional sports leagues that are governed by collective bargaining agreements between the league and a players’ association/union, there may be protections under those agreements. In addition, there may be particular protections in the specific Covid-19 protocols negotiated by leagues and players’ associations.
 
Employers in the various North American jurisdictions generally have an obligation to protect the health and safety of their employees. There may also be human rights protections if a player is not vaccinated due to a ground that is protected under human rights legislation.
 
What can employers do if their athletes are unable to play due to being unvaccinated?
 
This is a very real and current issue in various North American sports leagues. The rapid spread of the Omicron variant has resulted in many players on teams having to enter into the Covid-19 protocols that keep them out of games and practices. In some cases games have been cancelled where the number of players unable to play has been particularly high. Leagues are also modifying schedules and rules to provide teams with flexibility. For example, the National Hockey League (NHL) recently re-introduced “taxi squads” for a temporary period of time. This change essentially allows NHL teams to have access to a larger roster of players than would normally be permitted.
 
How do you see future sporting events being impacted?
 
All bets are off! Realistically, there will likely continue to be uncertainty and disruptions to games and events while this most recent Covid-19/Omicron variant surge continues throughout North America (and the world). Players and athletes are like anyone in their community and can be exposed to Covid-19. Organisations, leagues, and teams will continue to plan to have their events, games, and seasons. However, they will have to continue to implement contingency plans when Covid-19 infections occur among the players and athletes. The organisations and leagues will also have to remain current with the local rules that affect player and athlete participation as well as fan attendance in sporting venues.
 
Jeffery Wilson, counsel, JunHe LLP, China
 
What is the law on vaccinations?
 
Employers in China generally do not have the right to require their employees to get vaccinated or discipline them if they fail to do so.
 
Vaccination for Covid-19 is not included in China’s compulsory national immunisation program, which could allow for mandatory vaccination and testing. So, while an employer could include a rule in company policies that employees must be tested or vaccinated for Covid-19, firing them for a failure to be vaccinated or tested would be problematic given that a failure would likely not been deemed sufficiently “serious” to warrant termination.
 
While employers have a general legal obligation to provide a safe working environment for employees, that obligation has not been interpreted to give employees the right to work in a workplace that is restricted to vaccinated colleagues.
 
Some local governments have issued rules requiring testing and vaccinations for Covid-19, but these rules so far have been limited to job positions in public transportation, hospitals, educational institutions, logistics companies, construction, and shopping malls, that is, industries and locations where an employee is likely to be in close contact with large numbers of colleagues or the public.
 
There is currently no general requirement that individuals coming to China be vaccinated. Instead, China adopts a system of testing both before departure and after arrival, and quarantine for arrivals. Quarantines may range from 14-28 days.
 
Are there any sporting exemptions to an international or domestic athlete attending a tournament, match, or event?
 
Both international and domestic players in the Chinese Baseball Association (CBA) are generally required to be vaccinated. Those who are not vaccinated may not participate in competitions until their clubs have provided certificates setting forth reasonable grounds why the players are not vaccinated.
Vaccinations for players in the Chinese Super League (football) are merely recommended and not required. Chinese athletes, coaches, and officials are required to be vaccinated as well as receive booster shots for the Beijing 2022 Winter Olympics.
 
Foreign athletes, coaches, and officials who are not vaccinated for the Beijing 2022 Winter Olympics must complete a 21-day quarantine upon arrival in Beijing. Such individuals who are fully vaccinated can be exempted from quarantines and directly enter the Olympic “bubble”.
 
Individuals who had a severe allergic reaction or anaphylaxis to a previous vaccination may be entitled to an exemption. Individuals who suffered from myocarditis or pericarditis after a vaccination will be exempted. Exemptions are also available for women who are pregnant or nursing from countries (or regions) where vaccination is not allowed during pregnancy or nursing periods, and individuals who do not meet the vaccination age according to regulations of their home countries (or regions).
 
What protections are in place for an athlete who is unvaccinated (i.e. discrimination, exemptions, health & safety)?
 
None that we are aware of.
 
What can employers do if their athletes are unable to play due to being unvaccinated?
 
Being unvaccinated would not be a disqualifying condition except in the CBA.
 
How do you see future sporting events being impacted?
 
Sporting events and league competition in China will likely continue to be conducted in bubbles with frequent testing of athletes, coaches, and officials and quarantines for individuals arriving from abroad. While domestic leagues likely could be continued to run in this manner, this approach will likely result in a further exodus of foreign players and coaches.
 
China will likely be unable to attract further international tournaments and competitions given the preference of international sporting bodies (and athletes) to choose alternative countries with less stringent policies on quarantines and bubbles.
 
The authors are members of the global law firm network Multilaw. This Q&A was compiled and edited by Hayley Grammer, Multilaw

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